By Lehlohonolo Lehana.
The Parliamentary inquiry into Public Protector Busisiwe Mkhwebane’s fitness to hold office has been put on hold at least for now.
The acting speaker, Lechesa Tsenoli has filed an application at the Constitutional Court to appeal against the high court decision that found aspects of parliament’s impeachment rules for the heads of chapter nine institutions unconstitutional.
Tsenoli also applied to the Western Cape High Court for conditional leave to appeal to the supreme court of appeal, if the Constitutional Court rejects the application.
The judgment invalidated steps that had already been taken in the process for Mkhwebane’s impeachment — in particular the preliminary assessment by an independent panel chaired by retired Constitutional Court justice Bess Nkabinde. This panel found that Mkhwebane had a case to answer for misconduct and incompetence.
In his application, Tsenoli said he has decided to recommend a suspension of the process because if the high court judgment is confirmed on appeal, it would invalidate “everything … from the date when justice Nkabinde was appointed to the independent panel”.
The panel has already delivered its report and a committee has been established to conduct an inquiry.
When Mkhwebane challenged the constitutionality of the rules, she did so on 12 separate grounds. The majority of these were dismissed, but two were upheld. First, the high court agreed that it is unconstitutional — a breach of the separation of powers — for a judge to be part of the independent panel that makes a preliminary assessment of prima facie grounds for impeachment.
Second, the high court found it is unconstitutional that the public protector’s lawyer (or lawyer for any other head of a chapter 9 institution) may not participate in the parliamentary impeachment committee’s inquiry.
Tsenoli said the impeachment committee was on the verge of beginning proceedings and if the high court order is confirmed, it would invalidate those proceedings too.
However, he said the high court got it wrong on both these findings. It is rational to exclude the public protector’s lawyers from participating in the committee proceedings — the test is not whether the National Assembly “could have included different mechanisms to the ones it did, but whether the new rules contain a rational scheme for the conduct of proceedings”.
While the judgment compared the chapter 9 head impeachment rules with those already in place for impeaching a president, Tsenoli said they are not the same. Section 194 of the constitution prescribes “very serious consequences” for the removal of a president, such as the loss of benefits and a prohibition on the occupation of any public office in the future. This is a rational foundation for giving full participation to lawyers when the president is impeached, as opposed to the head of a chapter 9 institution.
The high court also reasoned wrongly about appointing judges to the independent panel, Tsenoli said. SA does not have a complete separation of powers between the executive, legislature and judiciary — as acknowledged by the high court’s judgment.
The job of the independent panel is “a function closely connected with the core function of the judiciary” and in terms of the rules the speaker has to consult the chief justice when appointing a judge to the panel to protect judicial independence.
“By refusing his/her consent, the chief justice can avoid a situation where, in the circumstances of a particular case, the appointment of a judge nominated by a particular political party may give rise to an incorrect perception that the judge is aligned with the party in question,” Tsenoli said.
The acting speaker has asked that if the Constitutional Court agrees there should be a judge on the independent panel, its order should be forward looking — so that it does not invalidate what has been done so far in the process relating to Mkhwebane.